12.  The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois.
13.  In the spring of 1996 Mrs Draon began her first pregnancy. The second ultrasound scan, carried out in the fifth month of pregnancy, revealed an anomaly in the development of the foetus.
14.  On 20 August 1996 an amniocentesis was carried out at Saint‑Antoine hospital, run by Assistance Publique - Hôpitaux de Paris (AP‑HP). The amniotic fluid sample was sent for analysis to the establishment’s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”.
15.  R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”.
16.  When informed of this T. admitted that his service had made the wrong diagnosis, the anomaly having already been entirely detectable at the time of the amniocentesis. He stated: “Concerning the child Draon R., ... we regret to have to say that there was indeed an asymmetry between the foetus’s two copies of chromosome 11; that anomaly or peculiarity escaped our attention”.
17.  According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment.
18.  On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R.’s disability.
19.  In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”.
20.  On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered.
21.  At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award.
22.  In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations:
“[AP-HP] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy R. is suffering from; ... having regard to the non-pecuniary damage, the disruption in the conditions of their lives and the special burdens arising for Mr and Mrs Draon from their child’s infirmity, AP-HP’s liability towards them in the sum of 250,000 francs may be considered, at the current stage of the investigation, not seriously open to challenge”.
23.  The expert filed his report on 16 July 1999 and confirmed the seriousness of R.’s state of health.
24.  On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay.
25.  AP-HP’s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R.’s state of health.
26.  In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”.
27.  After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002.
28.  On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants.
29.  In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002.
30.  In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d’Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions.
31.  On 6 December 2002 the Conseil d’Etat gave an opinion in the context of the litigation in progress (avis contentieux) which is reproduced below (see paragraph 51).
32.  On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations:
“Liability
The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general-interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999;
The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants’] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused;
It appears from the investigation that in the fifth month of Mrs Draon’s pregnancy, after an ultrasound scan had shown a manifest problem affecting the growth of the foetus, she and Mr Draon were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality. Mr and Mrs Draon then decided to have that test performed at Saint-Antoine Hospital. They were informed by the hospital on 13 September 1996 that no anomaly of the foetus’s male chromosomal pattern had been detected. However, very soon after the baby’s birth on 10 December 1996 magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly;
The report of the expert appointed by the court states that this anomaly was entirely detectable; failure to detect it therefore constituted gross negligence on AP-HP’s part which deprived Mr and Mrs Draon of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under section 1 of the Law of 4 March 2002”.
33.  The court then assessed the damage sustained by the applicants as follows:
“... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child’s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable;
... secondly, ... Mr and Mrs Draon are suffering non-pecuniary damage and major disruption in their lives, particularly their work, regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child; ... these two heads of damage must be assessed, in the circumstances of the case, at 180,000 euros;
... lastly ..., although Mr and Mrs Draon submitted that they could no longer holiday in a property they had purchased in Spain, they are not deprived of the right to use that property; consequently their claim for compensation for loss of enjoyment of real property must be rejected;...”
34.  The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14 December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR 3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court.
35.  On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal.